Title Deeds Silent – Who is Responsible for Common Repairs?
Published bySalma Melloul
Scenario: The effect of a storm has resulted in damage to a roof of a tenement building. There a combination of flats and commercial units within the tenement building. Given the danger posed by the damage, the local authority attended the tenement and carried out emergency works to render the tenement safe. A few weeks later, the local authority are seeking to recover a proportion of their costs from our clients, who are the owners of the commercial units. How can we determine the proportion of costs and who is responsible?
Title Deeds
Our first port of call is reviewing the title deeds of the commercial unit, alongside one or two other titles for the flats/ other commercial units within the tenement. The title deeds typically set out what is held to be “common property” amongst all or some of the various owners. The title deeds may also have information on the proportion of the maintenance costs attributed to the respective owners. Having examined the titles they are silent as to common parts and common repairs! So, how do we determine who is responsible and at what cost?
Tenements (Scotland) Act 2004
Where the Title Deeds are silent on who is responsible for common repairs, then Tenements (Scotland) Act 2004 (“The Act”) steps in. The Act incorporates a default Tenement Management Scheme that is applied in this very scenario (so as to avoid Tenements falling into serious disrepair because the title deeds are lacking).
By virtue of the Act, the Tenement Management Scheme notes the solum (surface), roof and external walls, are regarded as common parts for the purposes of maintenance and repair. This even applies if there is an exclusive ownership of the roof within a tenement but as highlighted within this blog, if the title deeds are silent on maintenance obligations, then the provisions within the Tenement Management Scheme prevails and the maintenance and repair of the roof is viewed as common.
Again, if the title deeds are silent regarding the apportionment costs attributed to each proprietor with respect to their maintenance obligation, then the Tenement Management Scheme states that costs are to be equally borne by the proprietors of the tenement. However, the caveat here is that some costs may be based on the floor size. This applies where the floor area of the largest property within the Tenement is more than one and a half times bigger than the smallest property. Often commercial owners suffer because of this rule!
If in doubt, check the Title Deeds….and then the legislation.
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